Monday, 26 November 2007

Is it legal?

There is a very good publication for parents answering frequently asked questions such as can I smack my child (yes but...), can I take my child on holiday in term time (no but...) and so on, called Is it Legal? (this links to a pdf file) on the Family & Parenting Institute website. I have not yet reviewed it to see whether I agree with all the answers but it looks very thorough and helpful.

There ought to be a word for it!

The moment of pure joy when you are cross-examining someone and it couldn’t be going better if you scripted the answers yourself – every question hits home & you and the witness are dancing in a conversation – you, the witness and anyone listening are no longer conscious that it is a question & answer session.

Sometimes, in my dreams anyway!

Saturday, 17 November 2007

Other orders about children the UK family court can make

Most of the types of orders listed below are not very common.

  • Declaration of paternity: Under s 55A of the Family Law Act 1986 a court can make a declaration that a person named in the application is or was the parent of another person so named. If paternity is established, the court must make the declaration, unless to do so would manifestly be contrary to public policy. If made, a declaration binds the world and not just the parties. When a declaration of parentage is made, the court notifies the Registrar General of the declaration. Under Births and Deaths Registration Act 1953, s 14A, the Registrar General has a discretion to authorise the re-registration of the birth on the basis of the declaration. An alternative procedure is available under Births & Deaths Registration Act 1953, s 10A, which provides for the re-registration of the birth of an illegitimate child in the Register of Births by entering the name of the father either at the joint request of the parents or at the request of the mother on the production of Statutory Declarations, parental responsibility agreement or parental responsibility order. See also this page about paternity on Families Need Fathers .

  • Special Guardianship order: the court can make a Special Guardianship order under s 14A of the Children Act 1989 . Special Guardianship is a bit like a cross between an adoption order and a residence order - it appoints someone as the child's special guardian throughout their childhood. The holder of an SGO has parental responsibility (but it is not removed from the parents) and slightly more powers than they would have if a residence order were made. Although it can be revoked by the court it is intended to last until the child is 18. For more information see the BAAF (British Association of Adoption & Fostering) page on special guardianship which has links to the DFES guidance & the regulations;

  • Orders for the payment of money: under s 15 of the Children Act 1989 the court can order the transfer of property, assets or money to either parent for the benefit of the child. The Child Support legislation is also relevant here - the court's powers are limited when the CSA is involved;

  • Family Assistance order: a family assistance order is an order under s 16 of the Children Act 1989 which can only be made in exceptional circumstances and with the agreement of all adults requiring a Cafcass Officer or social worker to provide assistance and advice about the children. Anyone to be named in the order (except for the child) must agree to the order being made and the order can only last for six months. Family assistance orders are not made very often in practice, not only because there have to be exceptional circumstances but also because the local authorities are not keen to take on extra responsibilities. They are most often made where parents in private law proceedings are having severe problems with contact or with establishing a civilised relationship after separation;

  • Permission to take a child out of the jurisdiction permanently: if a parent or carer wants to take a child to live abroad they may have to apply for permission from the court if anyone else with parental responsibility objects. The same applies if the parent or carer does not have a residence order and wants to take the child abroad on holiday or if they do have a residence order and want to go abroad for more than a month or if the holder of a special guardianship order wants to go abroad from more than three months. Even if the other parent of a child does not have parental responsiblity they can apply to the court to stop the parent who wants to go abroad taking the child with them. For an article on this topic see I'm Leaving On a Jet Plane, Don't Know When I'll Be Back Again: Can I Take the Children With Me? on international relocation cases and these case summaries ;

  • Seek & Find / Location orders : under s 34 of the Family Law Act 1986 the court can order a police officer or court official to enter and search a property where a child might be found and use any necessary force to get them back. The court can get help from the police to try and trace a child. This could involve a search of airports and seaports to try to ensure the children are not taken out of the country;

  • Disclosure: if you think that someone else knows where your child is you can apply for an order that they give the information to the court. The court's powers are found in s 33 of the Family Law Act 1986 and come into play when there is a section 8 order in force (see my post on orders in private law cases ). The High Court also has various powers under what is called its inherent jurisdiction - basically it can make any order for which there is no specific provision in the legislation to secure the welfare of a child.

  • S 91(14) orders : orders under s 91(14) of the Children Act 1989 are orders stopping a person making any more applications about a child without the court's specific approval.

Monday, 12 November 2007

There ought to be a word for it!

Another moment of pure joy when you are running a case which all around you thinks is unwinnable and you get the first confirmation in the evidence that you are going to be able to knock down the other side’s deck of cards. It is even better if the other side cannot see the significance of what just happened.

Regrettably this is not what happened to me today. Au contraire. Judge very cross with me because though I am agreeing with his point I consider him stuck with the law as decided by the House of Lords & he has rather taken against me as a consequence. There probably ought to be a word for that too - preferably not the one he threw in my general direction which just possibly might have been disgraceful. You will just have to trust me that I did not deserve it.

Sunday, 11 November 2007

What is the welfare checklist in UK family law?

The main welfare checklist is set out in s 1 of the Children Act 1989 . The welfare of the child is said to be paramount and the court must consider each of the following factors in any case concerning the upbringing of a child:

  • The ascertainable wishes & feelings of the child concerned (considered in the light of his age and understanding;
  • His physical, emotional and educational needs;
  • The likely effect on him of any change in his circumstances;
  • His age, sex, background and any characteristics of his which the court considers relevant;
  • Any harm which he has suffered or is at risk of suffering;
  • How capable his parents, and any other person in relation to whom the court considers the question to be relevant, are of meeting his needs;
  • The range of powers available to the court under the Children Act 1989 in the proceedings in question.

The Act does not define what paramount means: the Oxford English Dictionary says it means 'more important than anything else, supreme'.

There is another welfare checklist in s 1 of the Adoption & Children Act 2002. The act says that not only the court, but the adoption agency coming to any decision relating to the adoption of a child, must treat the child's welfare as paramount. The factors the court & adoption agency must consider are:

  • the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding);
  • the child's particular needs;
  • the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person;
  • the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant;
  • any harm (within the meaning of the Children Act 1989 which the child has suffered or is at risk of suffering;
  • the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's need, and (iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

In adoption decisions, the agency must also give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background. Both the court and adoption agency must always consider the whole range of powers available to it in the child's case.

The attitude of other agencies to non-resident parents

Other agencies such as doctors and teachers are not always familiar with the rights of a non-resident parent. They may know they have legal responsibilities to share information but may have practical constraints. Schools, for example, may have a duty to inform parents (whether or not with parental responsibility) but they tend to take the practical short cut. The child is given information in an envelope to take home to the main carer. This does not reach all the relevant people. Maybe you need to get in touch with the school directly and ask for arrangements to be made about copies of reports or the school calendar. GPs are under so much pressure. They do not want to produce anything in writing and do not usually do so when someone attends for an appointment. They have little or no access to legal advice and do not know what to do or what their legal responsibilities are. If in doubt, they will take the line of least resistance and will not necessarily put themselves out just because you share parental responsibility. There could be informal ways round this, depending on the situation. For example, your child suffers from asthma. Mother usually takes the child to the GP as the child lives with her. You want to know more – see if you can agree that you should take the child to the GP and let the GP know that you may want a bit longer so you can be got up to speed.

I have dealt with the above on the basis of the most common situation – the child is living with mother and having contact with dad. The same applies if the situation is reversed. Similar considerations arise if PR is being shared between parents and grandparents.

Monday, 5 November 2007

Crowisfaction? There ought to be a word for it?

Thanks to those who have suggested words for my recent missing words thing on obnoxious opponents and think crowisfaction pretty grand. But there is a small variation. Opponent who turns up thinking that because Judge took understandable dim view of your client's behaviour in the past s/he willl take same dim view even though life has moved on (this is very much a family thing). You sigh patiently while they outline why their client will not be agreeing to perfectly sensible middle ground and then try to push judge towards appealable and ill-considered indication. Then you point out very rationally why this is not right way forward as you would have explained to opponent if she had been in the mood for engaging brain and having sensible discussion. And then outside court they turn into charming rational creature who will after all discuss why your client should go much further than judge they had not got measure of views of in the first place suggested. Actually I think pratt sums it up quite nicely. And a good job I am not a point scorer who does not keep the children's interests in mind or it would be pretty tempting to leave it at that.

Saturday, 3 November 2007

What difference will having parental responsibility make to me as a father?

Some thoughts and a brief answer – maybe not a lot.

You already have the right to apply for permission to make section 8 applications ie for contact, residence, specific issue orders or prohibited steps orders. You can apply in care proceedings to become a party, and this is almost never refused.

The court is very unlikely to deny you that permission if you have a genuine concern about the way your child is being treated.

For example, if a mother with care is denying you information about or contact to your child you can make applications as above.

A mother may feel that she cannot have a reasonable conversation with you because of the circumstances surrounding your separation. She may, rightly or wrongly, see you as an irresponsible father.

The mother may simply not understand what sharing parental responsibility will mean on a day-to-day basis and may need to take legal advice.

Sometimes the issue of parental responsibility is seen as a bit of a footnote to other major decision such as where should the child live. It may be very difficult for the mother to consider the question of parental responsibility before the main issue has been decided.

The mother may need to hear from you that her role in the child’s life is not basically challenged – for example, that you agree the child should live with her and that you acknowledge that she is a good mother.

I am not suggesting that you should give up on parental responsibility but you might want to think through whether and maybe more importantly, when to pursue the application.

When a relationship has gone wrong, it takes time to restore the trust. It may be that the issue of PR can wait and other things such as contact are more important. Is there some way of introducing a third party as mediator or medium for communication? Your mother – her mother – a sister etc.

You may have a great deal to contribute to your child’s future. The mother may unreasonably be refusing to agree that you should have parental responsibility. If that is the case then maybe you need to go for it to make the point about your status in the child’s life.